New York State Court of Claims

New York State Court of Claims

RESTIVO v. THE STATE OF NEW YORK, #2009-045-008, Claim No. 114513, Motion No. M-74915


Synopsis



Case Information

UID:
2009-045-008
Claimant(s):
JOHN RESTIVO
Claimant short name:
RESTIVO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114513
Motion number(s):
M-74915
Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Cochran, Neufeld & Scheck, LLPBy: Deborah L. Cornwall, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Kimberly A. Kinirons, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2009-045-009


Decision

The following papers were read and considered by the Court on this motion: Claimants’ Notice of Motion for Partial Summary Judgment, Claimants’ Affirmation in Support with Exhibits 1- 16, Claimants’ Notice of Motion to Supplement the Record on Partial Summary Judgment, Claimants’ Affirmation in Support of Motion to Supplement the Record on Partial Summary Judgment with annexed Exhibits A-B, Defendant’s Affirmation in Opposition with Annexed Exhibits A-LL and Claimants’ Reply Affirmation in Further Support. Claimants, John Restivo and Dennis Halstead, have brought this motion seeking an order granting them partial summary judgment pursuant to CPLR 3212 and Court of Claims Act § 8-b(5).

On December 3, 1986, claimants were convicted in a joint trial for the crimes of rape and second degree murder of Theresa Fusco. Thereafter they were each sentenced to two concurrent terms of 25 years to life on the murder counts and to a consecutive term of 8⅓ to 25 years for the rape count. Claimant, John Restivo, was incarcerated from March 16, 1987 to June 11, 2003 and claimant, Dennis Halstead, was incarcerated from February 27, 1987 to June 11, 2003. At claimants’ trial the prosecution presented, inter alia, evidence of Ms. Fusco’s hair that was allegedly found in Mr. Restivo’s van.

Subsequent to their convictions, various DNA tests excluded claimants as the source of DNA obtained from the victim’s body. On June 11, 2003, Supreme Court Justice Victor M. Ort issued an order vacating claimants’ convictions pursuant to CPL §§ 440.10(1)(g) and 440.30(3). In December 2005, John Kogut was retried before Justice Ort in a bench trial. On December 21, 2005, Justice Ort found Mr. Kogut not guilty of all his indicted crimes. In delivering the verdict, Justice Ort stated that he did “not believe that the question hairs were left in the van on or about November 10th of 1984.”

Thereafter on December 29, 2005, the Nassau County Office of the District Attorney moved to dismiss the indictments against both John Restivo and Dennis Halstead pursuant to CPL § 210.20(1)(h). Supreme Court Justice William C. Donnino granted the motion and dismissed the charges. In granting the motion, Justice Donnino reasoned that “[a]dvances in DNA testing have revealed that the semen found in the deceased was not the semen of any one of the three defendants charged with committing these crimes. With respect to the hair of the deceased, Justice Ort found that it was not in defendant Restivo’s van. Regardless of whether that is a binding ruling, it is a significant finding in evaluating the viability of a continued prosecution. In short, the physical evidence does not connect the defendants to the crime, and the statements attributed to the defendants are contradicted by the physical evidence.”

As the party seeking summary judgment, claimants must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Medical Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Court of Claims Act § 8-b provides “redress to innocent persons who prove by clear and convincing evidence that they were unjustly convicted and imprisoned” (Ivey v State of New York, 80 NY2d 474, 479 [1992]). However, Court of Claims Act § 8-b(5) states, in pertinent part, that in order to obtain a judgment in his favor a claimant must prove by clear and convincing evidence that: (a) he has been convicted of one or more felonies or misdemeanors and has served all or any part of the sentence of imprisonment; (b) the judgment of conviction was reversed or vacated and the accusatory instrument dismissed on certain statutory grounds; (c) claimant did not commit any of the acts charged in the accusatory instrument and (d) claimant did not by his own conduct cause or bring about their conviction.

In the present case, claimants have submitted sufficient evidence establishing that they were convicted of more than one felony, served a portion of their sentences of imprisonment, their judgments of conviction were vacated pursuant to CPL § 440.10(g) and that their indictments were dismissed (see Long v State of New York, 7 NY3d 269 [2006]). Additionally, defendant has not opposed that portion of claimants’ motion seeking partial summary judgment as to these two elements of their claim. Accordingly, the Court finds that claimants have met their burden under Court of Claims Act §§ 8-b(5)(a) and 8-b(5)(b) and are entitled to partial summary judgment as to these two elements of their claim.

In order to obtain partial summary judgment under Court of Claims Act § 8-b(5)(c), claimants must establish by clear and convincing evidence that they did not commit any of the acts charged in the accusatory instrument. The clear and convincing evidence standard requires claimants to put forth evidence which would satisfy the Court, as trier of fact, that it is highly probable that they did not commit any of the acts charged in the accusatory instrument (Acosta v State of New York, 22 AD3d 367 [1st Dept 2005]; Alexandre v State of New York, 168 AD2d 472 [2d Dept 1990]; see also PJI 1:64). The evidence must not be equivocal, contradictory or open to opposing inferences (id.). Claimants have failed to meet this demanding burden at this juncture in the case.

Claimants argue that defendant is in privity with the Nassau County District Attorney’s Office and is consequently estopped from challenging certain findings made at claimants’ dismissal proceedings as well as findings made at the re-trial of John Kogut. Defendant avers, inter alia, that it is not in privity with the Nassau County District Attorney’s Office.

The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action an issue clearly raised in a prior action and decided against that party or those in privity to that party (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). In order to apply the doctrine of collateral estoppel two requirements must be satisfied. “First, the party seeking the benefit of collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action... [and] [s]econd, the party to be precluded from relitigating an issue must have had a full and fair opportunity to contest the prior determination” (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]). It is well settled that a litigant need not have been a party to the original action in order to invoke the doctrine of collateral estoppel on its behalf in a subsequent action (B. R. DeWitt, Inc. v Hall, 19 NY2d 141 [1967]). The “party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985]).

Claimants initially seek to preclude defendant from contesting Justice Ort’s finding that he did not believe that the victim’s hairs found in John Restivo’s van were left in the van on or about November 10, 1984. Claimants also seek to preclude defendant from contesting the results and/or the reliability of the DNA testing as presented in the dismissal proceedings before Justice Donnino. Claimants have established that these issues were raised in prior litigation and that they were determined against the interests of the Nassau County District Attorney’s Office.

Defendant was not a party to any of the previous litigation, however, a non-party to the prior litigation may be collaterally estopped by a determination if that party had “a relationship with a party to the prior litigation such that his own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation” (D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]).

When considering whether the non-party was in privity with the party against whom the litigated issue was decided, courts must carefully analyze the relationship between the parties. Privity has been described as “an amorphous concept not easy of application” (Matter of Juan C. v Cortines, 89 NY2d 659, 667 [1997][quoting D’Arata v New York Cent. Mut. Fire Ins. Co., supra]). Privity “includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and [those who are] coparties to a prior action” (Buechel v Bain, 97 NY2d 295, 304 [2001] [internal citations omitted]). When two governmental agencies are involved, a prior determination binding one governmental agency may not necessarily bind a different governmental agency. “[B]oth the circumstances of the actual relationship between the two agencies as demonstrated by the record and their statutory relationship are relevant” (Matter of Juan C. v Cortines, 89 NY2d 659,668 [1997][citations omitted]). If the second action involves a governmental agency whose functions and responsibilities are distinct from those of the governmental agency in the first action, such that preclusion would interfere with the proper allocation of authority between the two agencies, preclusion will not apply (Matter of Juan C. v Cortines, 89 NY2d 659, 669 [1997][citing Restatement [Second] of Judgments, §36, comment f]).

Public Officers Law §2 provides the statutory definitions for “state officer” and “local officer.” “To call an Assistant District Attorney a State officer would be impossible under the terms of that statute” (Fisher v State of New York, 10 NY2d 60, 61 [1961]). Even though the “District Attorney is in a sense part of the judicial system of the State and prosecutes criminal causes in the name of the People of the State [the District Attorney] does not act as a State officer or employee in any such sense as would make the State liable for his wrongdoing” (Fisher v State of New York, 10 NY2d 60, 61 [1961]).

In terms of functionality, the District Attorney’s Office is statutorily charged with the investigation and prosecution of violations of state and local criminal statutes as prescribed by County Law §700 et. seq. The Office of the Attorney General, defendant’s counsel in this matter, derives its authority from Executive Law § 60 et seq. While the Attorney General has statutory authority to prosecute crimes under certain circumstances, it has numerous civil responsibilities that make its functions and responsibilities mostly distinct from that of the District Attorney. The District Attorney functioned as the prosecutor in the underlying criminal proceedings involving claimants and John Kogut without any functional or legal involvement from the Office of the Attorney General. Conversely, in the present action, the Office of the Attorney General is defending the State of New York in a civil proceeding wherein claimants are seeking monetary damages.

Historically, the interests of the State of New York, as presented by the New York State Governor’s Office, have conflicted with the positions taken by the local District Attorneys’ Offices requiring litigation to resolve the issues between the two separate entities (Matter of Johnson v Pataki, 91 NY2d 214 [1997]; Mulroy v Carey, 43 NY2d 819 [1977]). In those situations, the Governor elected to supersede the local District Attorney and replace him as prosecutor with the Attorney General’s Office. In such a situation where the Governor exercises control over an action an argument of privity may be valid, however that is not the case in the present action.

A District Attorney’s Office has never been held to stand in privity with the State of New York in an unjust conviction and imprisonment context such that collateral estoppel has been applied as claimants are suggesting. There have been instances where the District Attorney’s Office was held to stand in privity with the Division of Parole (People ex rel. Dowdy v Smith, 48 NY2d 477 [1979]; People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76 [1979]). However, these holdings were based on the unique relationship between the Division of Parole in the parole proceeding and the People as prosecutors in the criminal action[1] (Matter of Juan C. v Cortines, 89 NY2d 659 [1997]).

Thus, this Court finds that defendant is not estopped from challenging the findings made at claimants’ dismissal proceedings as well as the findings made at the re-trial of John Kogut.

It is well established that an acquittal of criminal charges is not equivalent to a finding of innocence (Reed v State of New York, 78 NY2d 1, 8 [1991]). “An acquittal may prevent relitigation of issues necessarily resolved in the defendant’s favor at a subsequent criminal proceeding... [h]owever, where the subsequent proceeding is a civil one, involving a lower standard than proof beyond a reasonable doubt, an acquittal is not proof of innocence” (id.). Nor is the fact that claimants’ indictments were dismissed in this matter clear and convincing proof of their innocence (id.). It is clear that the prosecution moved to dismiss the indictments in the present matter due to their determination that they could not prove claimants’ guilt beyond a reasonable doubt (Cl Ex 6). The inability of the prosecution to satisfy their burden of proof in the criminal trial is simply not equivalent to the requirements of Court of Claims Act § 8-b(5)(c) which dictate that claimants prove their innocence by clear and convincing evidence (id.). In the case of Brown v State of New York[2], Court of Claims Judge Nicholas V. Midey, Jr. granted claimant’s summary judgment motion in an unjust conviction and imprisonment matter which involved DNA evidence. The present case differs from the Brown case in several significant aspects which are not limited to the criminal charges and evidence presented in each case. Discovery had also been completed at the time of Judge Midey’s decision and order as a trial of the matter was already scheduled. Consequently, at this early pre-note of issue stage in the proceedings, a grant of summary judgment pursuant to Court of Claims Act § 8-b(5)(c) would be inappropriate.

Therefore, for the foregoing reasons, claimants’ motion for partial summary judgment is granted in part pursuant to CPLR 3212 for Court of Claims Act §§ 8-b(5)(a) and 8-b(5)(b). Claimants’ motion is denied in all other respects.

March 5, 2009
Hauppauge , New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims



[1].The court notes the conflicting lower court decisions concerning the continuing viability of the holding in Piccarillo as “good law”(see People ex rel. Gordon v O’Flynn, 3 Misc 3d 963 [2004]; State of N.Y. ex rel. Thompson v Harder, 8 Misc 3d 764 [2005]).
[2].The case of Brown v State of New York can be found at the Court of Claims web site referencing UID# 2008-009-029, Claim No. 113684, Motion No. M-75106, Oct. 20, 2008.